Hilliard v. Schmidt

• Decision Date: 21 August 1998
• Docket Number: Docket No. 206028
• Citation: 586 N.W.2d 263,231 Mich.App. 316
• Parties: Lynn Marlene HILLIARD, f/k/a Lynn Marlene Platz, Plaintiff-Appellant, v. Carltin Dale SCHMIDT, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 263

586 N.W.2d 263

231 Mich.App. 316

Lynn Marlene HILLIARD, f/k/a Lynn Marlene Platz, Plaintiff-Appellant, v. Carltin Dale SCHMIDT, Defendant-Appellee.

Docket No. 206028.

Court of Appeals of Michigan.

Submitted June 2, 1998, at Grand Rapids.

Decided Aug. 21, 1998, at 9:05 a.m.

Released for Publication Nov. 18, 1998.

Patrick A. Dougherty, Manistee, for the plaintiff.

Stephanie E. Simon, Manistee, for the defendant.

Before MacKENZIE, P.J., and WHITBECK and ALLEN ^*, JJ.

MacKENZIE, P.J.

The parties divorced in 1993. The consent judgment of divorce awarded defendant father physical custody of the parties' older child, Carltin Dale Schmidt, Jr. (Carl, Jr.) (born August 31, 1982), and it awarded plaintiff mother physical custody of the parties' younger child, Scott Lee Schmidt (born June 25, 1988). On August 19, 1997, following a custody hearing, the trial court entered an order modifying the judgment of divorce and awarding defendant sole physical custody of Scott. Defendant's custody of Carl, Jr., was not at issue and was unchanged. Plaintiff appeals as of right. We affirm.

Plaintiff first contends that the inadmissible hearsay testimony of psychologist Joseph Verschaeve and defendant's new wife, Lisa Schmidt, influenced the trial court's custody decision, requiring reversal. The challenged testimony of both witnesses was essentially that Carl, Jr., told them plaintiff referred to defendant as "an asshole" in at least one conversation with the youth. However, as the trial court ruled, the challenged statements were not hearsay because defendant did not offer them to prove the truth of the matter asserted. MRE 801(c); In re Weiss, 224 Mich.App. 37, 39, 568 N.W.2d 336 (1997). Rather, defendant offered the testimony to show the effect of plaintiff's characterization of defendant on the parties' children. Statements offered to show that they were made or to show their effect on the listener are not hearsay. People v. Flaherty, 165 Mich.App. 113, 122, 418 N.W.2d 695 (1987). Accordingly, we find no abuse of discretion. Weiss, supra, p. 39, 568 N.W.2d 336.

As part of her hearsay claim, plaintiff also raises the argument that Verschaeve's psychological assessment was based on a method not recognized by the scientific community, rendering his expert testimony inadmissible. Plaintiff did not raise this issue in her statement of questions presented, making review inappropriate. Weiss v. Hodge (After Remand), 223 Mich.App. 620, 634, 567 N.W.2d 468 (1997). In any event, the proper inquiry is whether the testimony was admissible under MRE 702. See Nelson v. American Sterilizer Co., 453 Mich. 946, 554 N.W.2d 898 (1996). Because the opinion testimony was not purely speculative, the trial court properly allowed it under MRE 702, and its weight was for the court as trier of fact to decide. Phillips v. Deihm, 213 Mich.App. 389, 401-402, 541 N.W.2d 566 (1995).

Plaintiff also contends that the trial court's in camera interview of Carl, Jr., whose custody was not in dispute, was fundamentally unfair. We disagree. Due process requires fundamental fairness and applies to any adjudication of important rights. Dobrzenski v. Dobrzenski, 208 Mich.App. 514, 515, 528 N.W.2d 827 (1995). It is a flexible concept calling "for those procedural protections as the particular situation demands." Id., quoting Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). While a parent's interest in the care and custody of a minor child is an important interest that warrants due process protection, because a custody decree does not sever the parental bond and is subject to modification, due process rights in a custody case are not implicated to the degree present in termination of parental rights cases. See Haller v. Haller, 168 Mich.App. 198, 200, 423 N.W.2d 617 (1988). Rather, in custody disputes, the "overriding concern and the overwhelmingly predominant factor is the welfare of the child." Heid v. AAASulewski (After Remand), 209 Mich.App. 587, 595, 532 N.W.2d 205 (1995).

Maintenance of the sibling bond is a serious issue in a custody dispute and its consideration is appropriate under several of the statutory best interests of the child factors set forth in M.C.L. § 722.23; MSA 25.312(3). Wiechmann v. Wiechmann, 212 Mich.App. 436, 439-440, n. 2, 538 N.W.2d 57 (1995). As such, it was the responsibility of the trial judge to assess the boys' relationship and their need or desire to be together. Interviewing both boys was the logical way to conduct that assessment. To determine what is best for the child in divorce and custody cases, it is critical that trial judges have considerable latitude in gathering information about the family situation. The reality is that often the only way to obtain candid information is to speak with family members in private, where the atmosphere is less coercive and feelings can be spared. This Court has previously recognized that children who have already experienced the emotional trauma of their parents' separation should be relieved of the additional distress resulting from cross-examination and testifying before the parents, Lesauskis v. Lesauskis, 111 Mich.App. 811, 814-815, 314 N.W.2d 767 (1981), especially where, as here, the children have been caught in the middle of their parents' dispute. Compare Burghdoff v. Burghdoff, 66 Mich.App. 608, 612-613, 239 N.W.2d 679 (1976); Impullitti v. Impullitti, 163 Mich.App. 507, 510, 415 N.W.2d 261 (1987).

While Lesauskis, supra, and Burghdoff, supra, dealt with the propriety of in camera interviews to determine the reasonable preference of a child whose custody was at issue, we conclude that such in camera interviews should not be limited to aiding in the assessment of that single best interests of the child factor. The minor children of the parties to a custody dispute will often be among the best sources of information for a trial court regarding many of the statutory best interests factors. The trial court should be able to obtain this information from such minor children without subjecting them to "the additional distress resulting from cross-examination and testifying before the parents." Lesauskis, supra, p. 815, 314 N.W.2d 767. Because the predominant concern should be the welfare of the child, Heid, supra, we decline to follow Lesauskis and Burghdoff to the extent that those cases might be construed as limiting the scope of an in camera interview with a child of the parties to a custody dispute to a determination of the child's preference regarding custody. Rather, such an in camera interview may extend to any matter relevant to the trial court's custody decision. Moreover, to the extent that the trial court's custody decision may have taken into account Carl, Jr.'s, reaction to an incident in which his mother accidentally threw scalding water on him, the youth's reaction was in evidence through Verschaeve's testimony and was not exclusively known to the judge through the in camera interview. Under the particular circumstances of this case, therefore, we conclude that the trial court's in camera conversation with Carl, Jr., was not fundamentally unfair to plaintiff.

Plaintiff next challenges the trial court's findings of fact pertaining to the statutory best interests factors, arguing that the findings were against the great weight of the evidence and that the award of custody was an abuse of discretion. A trial court determines the best interests of the child by weighing the twelve statutory factors outlined in M.C.L. § 722.23; MSA 25.312(3). A trial court's findings with regard to each factor should be affirmed unless the evidence clearly preponderates in the opposite direction, while custody awards are reviewed for an abuse of discretion. Fletcher v. Fletcher, 447 Mich. 871, 879, 526 N.W.2d 889 (1994).

Factor a requires the trial court to consider "[t]he love, affection, and other emotional ties existing between the parties involved and the child." MCL 722.23(a); MSA 25.312(3)(a). Plaintiff argues that she had a closer relationship with Scott and that, rather than finding the parties equal, the court should have found that this weighed in her favor. However, the evidence established that both parties shared a close relationship with Scott, they both showed him love and affection, and both cared about his well-being. The evidence did not clearly preponderate against the trial court's finding. Fletcher, supra, p. 879, 526 N.W.2d 889.

As for factor b, "[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any," M.C.L. § 722.23(b); MSA 25.312(3)(b), the trial court found that defendant was better suited to provide guidance. Defendant's decision to stop drinking and his willingness to provide counseling for the parties' child supported this finding; it was not against the great weight of the evidence.

The trial court found in favor of defendant with regard to factor c, "[t]he capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs," M.C.L. § 722.23(c); MSA 25.312(3)(c). Plaintiff argues that her employment situation will improve after she receives her associate's degree as a medical assistant. The trial court, however, properly relied on the facts established at the custody hearing rather than plaintiff's speculation that she will be more gainfully employed in the future. Defendant had enjoyed stable employment for nine years that provided full medical coverage, while plaintiff was financially dependent on a third party and relied on government benefits to assist her in providing for the parties' child. The evidence supported the trial court's finding.

The trial court also found that factor d, "[t]he length of...